State v Tavutu - Summing Up [2019] FJHC 442; HAC186.2018 (15 May 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 186 of 2018

[CRIMINAL JURISDICTION]

STATE

V

MOSESE TAVUTU

Counsel : Mr. M. Vosawale for State

Ms. M. Ratidara for Accused

Hearing on : 07 – 14 May 2019
Summing up on : 15 May 2019

[The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “TA”.]

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
2. Evidence in this case is what the witnesses said from the witness box inside this court room the admitted facts and the exhibits tendered. As I have told you in my opening address, your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or the complainant. No such emotion should influence your decision.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behaviour when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
   
6. The complainant said in her evidence that she is 09 years old and her date of birth is 31/08/2009. She gave evidence about an incident that had allegedly taken place when she was 08 years old. You may have come across children of this age. You will have an idea of the way a child of a particular age behave, think, talk and the way they describe things.
   
7. Children can be confused about what has happened to them. Sometimes children do not speak out for fear that they themselves will be blamed for what has taken place, or through fear of the consequences should they do so. They may feel that they may not be believed. They may fear they will be punished. They may be embarrassed because they did not appreciate at the time that what they were doing was wrong. They may be embarrassed because they found that some aspects of the attention they were getting from the individual concerned were enjoyable.
   
8. I mention these possibilities because experience shows that children do not all react the same way to sexual acts as adults would. It would be a mistake to think that children behave in the same way as adults, because their reaction to events is conditioned by their personal experience and immaturity and not by any moral or behavioural standard taught or learned. What happened in this particular case is however, a decision for you to make.
   
9. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts. Sometimes we honestly forget things or make mistakes regarding what we remember.
   
10. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies when you compare the evidence given by witnesses on the same issue. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected.
    
11. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide.
    
12. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.
    
13. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
    
14. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that that inference is the only reasonable inference to draw from the proved facts. If there is a reasonable inference to draw against the accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
    
15. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those admitted facts. You should consider those facts as proven beyond reasonable doubt.
16. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt in order for you to find him guilty. You must be sure of the accused person’s guilt.
    
17. In order to prove that the accused is guilty of an offence, the prosecution should prove all the elements of that offence beyond reasonable doubt. If you have a reasonable doubt in respect of any element of the offence the accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in a short while.
    
18. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge has been proved.
    
19. Please remember that you will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion. But it is not necessary.
    
20. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offence;

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of Offence

MOSESE TAVUTU, between the 1^st of November 2017 to the 31^st of November 2017 at Kadavu in the Southern Division, penetrated the vagina of TA a child under the age of 13 years, with his penis.

21. To prove the offence of rape in this case, the prosecution must prove the following elements beyond reasonable doubt;
    1. the accused;
    2. penetrated the complainant’s vagina with his penis;
    100. without the consent of the complainant; or

that the complainant was below the age of 13 years at the time of the incident.

22. The first element of the offence of rape is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that it was the accused who committed the offence and no one else.
    
23. The second element involves penetration. To establish this element, the prosecution should prove beyond reasonable doubt that the accused penetrated the vagina of the complainant with his penis. A slightest penetration is sufficient to satisfy this element. Evidence of full penetration or ejaculation is not necessary.
    
24. Law says that ‘a child under the age of thirteen years is incapable of giving consent’. In this case you have to decide whether you are satisfied beyond reasonable doubt that the complainant was below the age of thirteen years at the material time.
    

Prosecution case

25. The complainant (PW1) said in her evidence that;
    1. She is 09 years old. She said she was born on 31^st August 2009. She tendered her birth certificate as PE1. She said that she was living in Kadavu with her mother, her father and the accused during the period between 1^st November 2017 and 31^st November 2017. She said the accused is related to her mother.
    2. She said, one night during the month of November, 2017 she was at home sleeping in her room when her mother and father had gone to drink grog at Bubu L’s house. She said there are two rooms in that house, one room was occupied by the accused and the other room by herself, the mother and her father.
    100. She said there were three solar lights in the house. One in the middle, one inside the room and one inside the kitchen. When she was sleeping in the room she heard someone knocking at the door. She opened the door and went back to sleep. When she opened the door the accused came inside. After she went back to sleep the accused came to eat.
    4. Thereafter, the accused came and slept beside her. She said she saw the accused’s face. After that the accused took her panty and her pants off. She said she was facing upwards. Then the accused took his penis out and inserted it inside her vagina. She knew that he inserted his penis inside her vagina because she felt it at that time. She said he did not put right inside but she felt it inside her vagina. When the accused was doing this she cried but she did not scream. She said she couldn’t scream because the accused closed her mouth with his hand.
    5. She said, the accused went outside after he finished inserting his penis. After the accused left, she went to her mother who was at Bubu L’s house. She asked her mother to come home with her. She said she did not tell her mother about what the accused did to her because the accused told her not to tell her mother. She said she did not tell her father about the incident that night. She said in 2017 she was not schooling. She identified the accused in open court.
    6. During cross examination she agreed with the suggestion that her parents took her with them wherever they go. She agreed that the house was situated away from other houses. She agreed that the accused went out to drink grog nearly every night. She also agreed that her mother would take her when the mother goes to drink grog because their house was isolated from the other houses in the village. She agreed that when the accused left Kadavu and came to Suva, she and her mother came to drop the accused in Suva.
    7. She agreed with the suggestion that she was perfectly alright when she accompanied her mother to drop the accused in Suva. She also agreed that the allegation came about after she was having a stomachache. She agreed that she had the stomachache around the 26^th December 2017 and that this was around one month after the accused left.
    8. She agreed that when the complaint was first made she mentioned the name ‘Jonati’. She also agreed that she mentioned the name ‘Jonati’ when she was medically examined. She also agreed that she mentioned the accused’s name in her second statement to police which was given on 29^th December. She also agreed with the suggestion that she mentioned in her second statement that the reason she did not mentioned the accused’s name initially was because her mother asked her not to do that.
    9. She agreed with the suggestion that she informed the police in her statement given on 27^th December that she told her mother about the incident the same night and that in court her evidence was that she did not tell her mother about what the accused did to her. She agreed with the suggestion that while the accused was in Kadavu her mother did not leave her at home at any point in time.
    10. When she was asked whether she would agree that the evidence she gave regarding what the accused did to her never happened, she said “it happened”. She agreed that a lot of questions were asked when she was having the stomachache. Then when it was suggested to her that, because she was questioned she felt pressured and at first she mentioned Jonati’s name and thereafter the accused’s name, she said ‘yes’. When it was again suggested to her that the accused never did anything to her while the accused was at Kadavu, she said the accused did it.
    11. During re-examination she said her mother was not at home when the accused did these things to her. She said she did not tell her mother about what the accused did to her. She said Jonati is also from Matasawalevu. She said Jonati did not do the bad thing to her. She said she does not know why her mother told her not to mention the accused’s name.
        
26. The second prosecution witness (PW2) was MVT. She said that;
    1. She has three brothers. She said Jonati is one of her younger brothers and in 2017 he was 8 years old. She said in 2017 Jonati was in class 4. She said in 2017 she spent Christmas at Kadavu. After the Christmas day she went on a picnic with others and she was told by one of the friends about what happened to the complainant.
    2. She then took the complainant to a nearby place and made her sit down. She asked the complainant what happened. According to her the complainant told her that one night when the complainant was sleeping alone in the house ‘Mosese’ forced himself on her and her vagina was injured.
    100. During cross-examination she admitted that the only reason she confronted the complainant was to clear her brother’s name. When she was asked whether she would agree that the complainant felt pressured to tell her the name ‘Mosese’ instead of her brother’s name, she said ‘yes’.
    4. During reexamination she said that she did not pressure the complainant to say anything.
       
27. The third prosecution was witness (PW3) detective corporal Josua Gagalia. He said that;
    1. His role in this case was to conduct the interview. Apart from conducting the interview he also took a team to Matasawalevu village to attend to the report. He could not recall as to who lodged the report. He said five team members went with him. He said the name of the suspect was Mosese Tavuto.
    2. During cross examination he agreed that the complainant had also mentioned the name ‘Jonati Bale’. He agreed that the same name was also mentioned when the complainant was medically examined. When he was asked whether he would agree that there was no investigation conducted regarding Jonati he said he can’t recall.
       
28. The fourth prosecution witness (PW4) was WPC Gorgiana Gavidi. She said that;
    1. On 29^th December 2017 she left to Matasawalevu village to attend to this report. The Turaga-ni-koro of the village lodged the complaint on behalf of the complainant’s father. The complaint was that the complainant was sexually assaulted by one Jonati of the same village.
    2. She said she found out that Jonati was a 5 year old from Matasawalevu village. She only had a verbal conversation with Jonati because he was just a 5 year old. She said that according to the doctor, it was an adult person because of the injuries.
    100. During cross examination she said that the complainant’s mother took the complainant to the hospital for the medical examination. She said the medical officer explained to her about the injuries.
    4. When it was suggested that the complainant was taken for medical examination almost one month after the accused left Kadavu, she said the accused was still there. She then agreed that she came to know that during her conversation with the complainant and the mother and no checks were conducted to verify the time the accused actually left.
    5. She agreed with the suggestion that the complainant told her that the mother was informed about the incident by the complainant straight after the incident.
    6. During re-examination she said she found out about the complainant’s injuries when she went to pick the medical report from the doctor.
       
29. The fifth prosecution witness (PW5) was Alinieta Verevalu Rogogo. She said that;
    1. She had practiced as a nurse for 19 years. She said as a nurse practitioner she would look after the out-patients, she attends to the anti-natal mothers, she would conduct maternal child health clinics and she would also diagnose and treat medical care illnesses and refer them to the appropriate specialist if need be.
    2. She said on 4^th December 2017 she conducted a medical examination on the complainant. She said the complainant came with her biological mother and the mother told her that the complainant was sexually assaulted by a small boy by the name of ‘Jonati’.
    100. She recorded her findings in the out-patient registrar and also in her diary. At that time there was no Police Medical Form at the station. She recorded the findings in a Police Medical Form sometime later. She tendered the medical report she prepared as PE2.
    4. At D12 she had noted, ‘vagina gaping, hymen absent, inflamed vaginal area, nil lacerations/ bruises and nil scars’. At D14 she recorded that vaginal penetration had occurred and it is consistent with blunt force trauma some three weeks ago. She said, by ‘blunt force trauma’ she was referring to ‘penis’. She said that her conclusion was that vaginal penetration through blunt force has taken place.
    5. She said this was her third examination and she had conducted two such examinations prior to that. She said that, at that time she was on relieving duty. She said she has an Advance Diploma in Nursing Practice.
    6. She said she was aware of Jonati Bale and he was a small boy from the same village. She said there were no injuries.
    7. She was not cross-examined.
    8. Then the court asked her to explain why she said that there were no injuries but at D12 she had mentioned inflamed vaginal area. Her answer was that there was some redness around the vaginal orifice. Then she was asked whether she can clearly say through medical findings that it was a penis as she mentioned in her evidence. Initially she said ‘yes’. But then when she was asked to explain, there was no answer. Then when she was asked whether she cannot explain the basis of the answer she gave, she said ‘yes’.
    9. Thereafter the prosecutor asked her further about the term ‘blunt force trauma’ and her answer was ‘use of fingers and penis of course’.
       
30. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give evidence and call witnesses.
    
    31. The accused said in his evidence that;
        1. In November 2017, he stayed in Kadavu with his cousin sister VW, her husband MD and their daughter, the complainant for two weeks. He said he went to Kadavu to play rugby on the invitation of VW and MD.
        2. He said the house they lived in was isolated and was not within the village boundaries. While he was there, during night times, he used to go for grog sessions with MD. When they go to drink grog, the complainant and VW would stay at home.
        100. He denied the allegation. He said he left Kadavu because one of his brother’s was involved in a case. He said, the complainant and VW came with him to Suva and the complainant was fine when they came.
        4. He said he was informed about the allegation in December 2017. He said, he could not have committed the offence because he is related to VW.
           
32. The second defence witness was VW. She said that;
    1. She is married to MD and the complainant is their adopted daughter. She said that she is related to the accused. She said the accused lived with them in November 2017 after she and her husband asked him to come and play for the Yavulu Sevens.
    2. She said the accused would go to drink grog in the evenings and she would stay home with the complainant watching movies.
    100. She said the accused left Kadavu because the complainant had to come to Suva for schooling. They left together.
    4. She said she first came to know about the allegation when the complainant’s biological mother told her that the complainant is injured. When the complainant was questioned, the complainant kept saying the name ‘Jonati’ but later she mentioned about the accused. She said that the complainant mentioned the accused’s name for the first time when the complainant was questioned by the police.
    5. She said that she ensured that the complainant always stayed with her and would not leave the complainant alone in the house.
    6. During cross-examination she agreed that in 2017 term 3 the complainant did not go to school. She agreed that she went to Bubu L’s house for grog sessions in some evenings in November 2017 and that these sessions would go on till late. She said she would always take the complainant with her for the grog sessions.
    7. She again said that sometimes she would take the complainant with her and sometimes the complainant would stay with the biological mother when she went for grog sessions.
    8. When it was suggested to her that on one night in November 2017, she was drinking grog with her husband at Bubu L’s house while the complainant was in the house, she said that she took the complainant with her that evening.
       
33. The final witness for the defence was MD. He said that;
    1. He is married to VW and the complainant is their adopted daughter. He said in November 2017, he lived in Kadavu with his wife, the complainant, the accused and Semi Tuikavakava who is his cousin.
    2. He said when the accused was staying in his house he and the accused always used to drink grog in the evenings. When they go to drink grog, his wife and the complainant would stay at home.
    100. He said his wife informed him about the allegation and initially the name ‘Jonati’ was mentioned. He came to know that the allegation was against the accused when the police came for the second time. He was shocked and could not believe. He said the accused would listen to him when the accused was with him and also the accused and the complainant were like siblings.
    4. He said that it was his decision to send the complainant to the school the complainant is currently schooling and he supports her financially.
    5. During cross-examination he agreed that he wouldn’t know when the accused would return home alone after drinking grog with him. He agreed that he used to drink grog with his wife at Bubu L’s house. He said the complainant would to stay with his wife when they had grog at Bubu L’s house.
    6. When it was suggested to him that one night in November 2017, he and his wife were out enjoying grog while the complainant was alone at home, he said he cannot recall. Later he said that he cannot recall because the complainant was staying with his wife.
       
34. That is a summary of the evidence. Please note that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I have not referred to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit.
    
35. The following facts are admitted facts and you should consider that these facts are proven beyond reasonable doubt;

1. The complainant is TA.

2. Mosese Tavutu is known to the complainant.
3. The complainant is the daughter of PD and DMK.
4. Since her birth the complainant was under the care of her adoptive parents.
5. VW and MD are the adoptive parents of the complainant.
6. The complainant and her adoptive parents resided at Matasawalevu Village, Kadavu.
7. Mosese Tavutu resides at Nacobo Village, Ovalau.
8. Sometime in November 2017, Mosese Tavutu went to Matasawalevu Village, Kadavu.
9. Mosese Tavutu resided in the house of VW and MD.
10. VW is the sister of the Mosese Tavutu.
11. Mosese Tavutu resided at Matasawalevu Village for two weeks.
12. Mosese Tavutu was aware that the complainant was also residing in the same house at Matasawalevu Village.
    
36. As I have already highlighted, experience has shown that victims of sexual offences may react in different ways to what they went through. Some, in distress or anger may complain to the first person they see. Some, due to shame, fear, shock or confusion may not complain for some time or may not complain at all. However, if there is a delay, that may give room to make-up a story, which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay. Your task is to decide whether you are sure that the complainant has given you a truthful and a reliable account of her experience concerning the offence the accused is charged with.
    
37. You would note that PW2 in her evidence said that the complainant had told her certain things regarding the alleged incident. The complainant on the other hand did not mention in her evidence about saying anything to PW2. Please remember that, even if you believe PW2, the evidence she gave with regard to what the complainant had told her cannot be considered in deciding whether the elements of the offence are proven.
    
38. The fifth prosecution witness gave her opinion based on what she observed and her experience. You are not bound to accept that evidence. You will need to evaluate that evidence for its strengths and weaknesses, if any, just as you would with the evidence of any other witness. It is a matter for you to give whatever weight you consider appropriate with regard to the observations made and the opinion given by the fifth prosecution witness. Evaluating her evidence will therefore include a consideration of her expertise, her findings and the quality of the analysis which supports her opinion.
    
39. You heard that the fifth prosecution witness was a nurse practitioner. She was not a medical doctor. She said that it was her third medical examination and she said she cannot explain the basis of her findings. Therefore, you may decide to disregard her opinion.
    
40. The accused denies the allegation that he penetrated the complainant’s vagina with his penis.
    
41. The defence says that there are inconsistencies in the evidence given by the complainant. You should deal with inconsistencies according to the directions I have already given you.
    
42. According to the evidence, the complainant had initially mentioned the name ‘Jonati’. Prosecution says that the complainant did that, because she was told to do so by the second defence witness. However, the complainant did not explain in her evidence the reason for her to initially mention the name ‘Jonati’. The fourth prosecution witness said that Jonati was 05 years old at that time. According to the second prosecution witness, Jonati was her brother and she agreed that she questioned the complainant to clear her brother’s name. She said that Jonati was 08 years old in 2017.
    
43. Considering the facts you may consider to have been proved beyond reasonable doubt based on the evidence led in this case and the reasonable inferences you would draw from those proven facts, you have to ask yourselves, firstly, whether you are satisfied beyond reasonable doubt that the complainant had given you a truthful and a reliable account. Thereafter, you should decide whether the elements of the offence have been proved beyond reasonable doubt given the evidence you would consider to be credible and reliable.
    
44. You must remember to assess the evidence for the prosecution and the defence using the same yardstick but bearing in mind that always the prosecution should prove the case against the accused beyond reasonable doubt.
    
45. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
46. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise;
    
    • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
      
    • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, or his witnesses, that itself does not make him guilty. The situation would then be the same as if he had not given any evidence at all. You should still consider whether the prosecution has proved all the elements beyond reasonable doubt.

If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.

47. Any re-directions?
    
48. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
49. Your opinion should be whether the accused is guilty or not guilty.
    

Vinsent S. Perera
JUDGE

Solicitors:

Office of the Director of Public Prosecutions for the State

Legal Aid Commission for the Accused